STEVEN ALLEN ADAMS
CHARLESTON — Attorneys for the West Virginia Department of Health and Human Resources admitted to deleting the emails of several prominent former department officials being sought in a class action lawsuit over the state’s foster care system.
In a court filing Friday, attorneys for DHHR filed their opposition to an Oct. 25 motion by attorneys representing children in the state’s foster care system seeking sanctions against DHHR over the deletion of emails.
The attorneys were seeking emails for seven named defendants, including former DHHR Cabinet Secretary Bill Crouch and former Commissioner of DHHR’s Bureau for Children and Families Linda Watts. The emails being sought were either sent or received after September 2020, but DHHR confirmed that three years worth of emails were deleted.
“(DHRR) and other defendants deeply regret — and apologize to plaintiffs and the court — that certain electronically stored information (ESI) potentially relevant to this litigation was not preserved despite Defendants’ reasonable efforts to do so,” wrote attorney Philip Peisch with the Brown and Peisch law firm in Washington, D.C., and Steven Compton with the West Virginia Attorney General’s Office.
The class action lawsuit, filed in 2019 in the U.S. District Court for the Southern District of West Virginia, alleges foster children in the state are often housed either in hotels, shelters, institutions or out of state and are subject to abuse and neglect. Attorneys representing the foster children include Shaffer and Shaffer law firm, A Better Childhood and Disability
Rights West Virginia.
The motion for sanctions accuses DHHR of “deliberate indifference” to due process claims brought by the attorneys representing 12 foster children against DHHR and prohibits the department from moving for summary judgment regarding those specific due process claims. It would also prohibit attorneys for DHHR from arguing that now-deleted emails would show that DHHR did not act with deliberate indifference.
After several discovery requests over the last three years, attorneys for DHHR sent a letter Oct. 6 to the class action attorneys informing them that the emails they seek no longer exist. Once a department or agency notifies the state Office of Technology that a state employee has left the department or agency, that starts a 30-day countdown for that department/agency to download that employee’s emails or digital files.
After 30 days, the Office of Technology deletes those files unless the department and agency notifies the Office of Technology to hold those files due to pending litigation. According to the foster care attorneys, emails for Crouch, Watts and three other former DHHR officials were subject to a litigation hold. They also argue that DHHR should have maintained emails for former interim cabinet secretary Jeffrey Coben and Laura Sperry-Barno, a former office director for DHHR’s Office of Children and Adult Services.
In their Friday filing, attorneys for DHHR said the request for sanctions from U.S. District Judge Joseph Goodwin against them was excessive. According to the attorneys, more than 900,000 pages of documents have been provided in the case and they will provide all available emails for DHHR workers still currently employed.
“While defendants acknowledge that some emails between former officials (or between those officials and non-state employees) may have contained some relevant information and should have been preserved, they are far from ‘essential’ to plaintiffs’ claims for prospective relief,” Peisch and Compton wrote. “…There was no ‘intent to deprive’ plaintiffs of this evidence, which is the standard for levying the type of severe sanctions that Plaintiffs seek here.”
The state Department of Homeland Security and Division of Corrections and Rehabilitation recently settled a class action lawsuit brought over conditions at the Southern Regional Jail near Beckley after a federal magistrate criticized the state for deleting emails from corrections officials, accusing the state of deliberately destroying evidence.
According to attorneys for DHHR, the Governor’s Office and the Office of Technology are updating policies regarding the preservation of electronic files to avoid future issues.